In its judgment of 3 February 2026, the Antwerp Court of Appeal provided important guidance on the application of Belgian anti-abuse rules to share deals carried out in the context of corporate restructuring.
Facts
The case concerned a Belgian group active in the senior housing sector. As part of a broader reorganisation, a Belgian company within the group was partially demerged, with its operational business being carved out from its real estate assets and transferred to another group entity. Subsequently, the shares of the demerged entity owning the care facility were sold to a third-party investor in a sale and lease back transaction.
On such transaction, the Belgian holding company realised a capital gain of slightly over 10 million euros and claimed the capital gain exemption on shares under Article 192 BITC. However, the Belgian tax authorities challenged this exemption, arguing that the structure artificially transformed what should have been a taxable real estate transaction (an asset deal) into a tax-exempt share deal.
According to the tax authorities, the transaction fell within both the specific anti-abuse rule from the parent-subsidiary directive (Article 203, §1, 7° BITC) and the general anti-abuse provision (Article 344, §1 BITC).
The holding company therefore brought the case before the Court of First instance of Antwerp, Antwerp division, which fully upheld the taxpayer’s position in its judgment no. 22/4610/A, dated 25 March 2024. The tax authorities subsequently appealed against the decision to the Antwerp Court of Appeal.
Decision
The Court of Appeal dismissed the tax authorities’ arguments and fully upheld the first-instance decision in favour of the taxpayer.
It confirmed that in this case the combination of a partial demerger followed by a share deal did not constitute an artificial arrangement. The Court found that the structure was grounded in genuine economic considerations and therefore fell outside the scope of the anti-abuse provisions.
Key elements
Several factors were decisive in the Court’s reasoning:
- The transaction was not an isolated step, but part of a multi-year plan to reorganise the group by separating real estate from operational activities.
- The sale enabled the holding company to generate liquidity, to raise bank financing and support further investments. The Court noted that the proceeds were effectively used to finance expansion within the group. The holding company invested six times the sale proceeds primarily in depreciable assets.
- The Court stressed that the holding company never owned the underlying real estate directly. Consequently, a share deal could not be equated with a sale of the property itself. The Court held that, in the absence of evidence of sham, the tax authorities must respect the distinct legal entities.
- The Court rejected the tax authorities’ assumption that a share deal and an asset deal are economically equivalent. It highlighted differences in valuation, legal consequences and cash flow allocation.
- The structure ensured the transfer in continuity of existing contracts (including 13 ongoing renovation agreements) and avoided potential disruptions that could have arisen in an asset deal scenario.
- The Court acknowledged that share deals are a common approach in real estate transactions in Belgium and cannot, in themselves, be considered abusive.
Conclusion
This decision reaffirms selecting a share deal over an asset deal does not in itself constitute tax abuse, even if it results in a more favourable tax outcome. Where a transaction is supported by genuine business motives and reflects economic reality, Belgian courts remain reluctant to recharacterize it for tax purposes.
This approach is fully in line with what we have consistently advocated prior to this decision, namely that properly substantiated restructurings should withstand such anti-abuse challenges.
The judgment also serves as a reminder that the burden of proof lies with the tax authorities to demonstrate the existence of an artificial arrangement - something that the tax authorities did not successfully establish in this case.
Are you considering the sale or restructuring of a company that combines both operational activities and real estate, or a sale‑and‑leaseback transaction that may require a prior carve‑out? Do not hesitate to contact us before taking any steps. While this decision sends a positive signal for taxpayers, it also shows once again that the tax authorities do not automatically accept these structures and frequently invoke anti‑abuse arguments. Careful preparation, a clear business rationale, and thorough documentation are therefore essential to minimize disputes and achieve a favorable outcome in any proceedings.
